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January 15, 2009

Who's Footing Mehserle's Legal Bills?

Legal Pad was curious about this and determined that former BART police officer Johannes Mehserle, charged with murder for the New Year’s Day shooting of Hayward resident Oscar Grant, is likely receiving his legal representation courtesy of his union, the BART Police Officers Association, though he has resigned from his job.

Dozens of protesters lay down in front of Oakland City Hall to mimic Oscar Grant's last moments at a demonstration Wednesday night. Photo by Jason Doiy

Christopher Miller, a labor attorney at the Sacramento firm of Mastagni, Holstedt, Amick, Miller, Johnsen and Uhrhammer, works for at least two major legal defense funds associated with California law enforcement groups. But it was unclear Wednesday evening whether the BART Police Officers Association contracts directly with Miller’s firm for legal defense or pays one of the two statewide law enforcement groups with whom Miller works.

Miller is the lead counsel for the California Peace Officers Association Legal Services Program, according to his firm’s Web site, and he also works as a panel lawyer for the legal defense fund connected to the Peace Officers’ Research Association of California. Miller did not return a call seeking comment on Wednesday.

Craig Brown, a former Santa Clara County prosecutor who routinely represents law enforcement officers, said that police unions typically contribute a portion of their members’ monthly dues to a legal defense fund. Brown, like Miller, is a member of the panel of lawyers called on by PORAC.

Police unions typically advise their legal defense funds about lawyers they know and feel comfortable with, Brown said, so that when an officer calls in need of representation, there’s a list of familiar attorneys available.

“The magic words are course and scope of employment,” Brown said, meaning that those who oversee such legal defense funds will usually agree to cover an officer’s representation if the incident under scrutiny occurred while the officer was on duty and arose from the course of doing their job.

Brown speculated that Miller and Mehserle probably determined that Mehserle should resign rather than give a statement to internal BART investigators because he had little prospect of keeping his job anyway.

Officers under investigation are “normally given a reverse Miranda admonition [by internal affairs], in which they’re told, ‘We are ordering you and compelling you under threat of discipline and possibly termination to speak to us,’” Brown said.

Panel lawyers being paid out of a legal defense fund are typically paid on an hourly basis, though the amount depends on factors like the nature of the case, the stage of the proceedings and the experience of the lawyer, he said.